TBALink Opinion-Flash

December 22, 1997 -- Volume #3 -- Number #135

Here is today's issue of TBALink Opinion-Flash. What follows
is the document name, first paragraph and the names of the
attorneys for the parties (If you know one of them you
might want to give them a call, chances are they don't know
about the opinion yet) of each electronic opinion/rules released
TODAY from the three appellate courts.

This Issue (IN THIS ORDER):

05-New Opinons From TSC

00-New Opinons From TSC-Rules

00-New Opinons From TSC-Workers Comp Panel

00-New Opinons From TCA

04-New Opinons From TCCA

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George Dean
TBALink Chief Editor

WILLIAM E. CUNNINGHAM,
Administrator of the Estate of
ROBERT W. CUNNINGHAM, SR., and
ROBERT W. CUNNINGHAM, JR.
vs.
SHELTON SECURITY SERVICES, INC.,
and EMPLOYERS INSURANCE OF WAUSAU
Court:TSC
Attorneys:
For Appellants: For Appellees:
TERRY R. CLAYTON H. MICHAEL BENNETT
Nashville, TN Nashville, TN
Judge:BIRCH
First Paragraph:
In this worker's compensation case, the trial court granted the
deceased employee's representative ("petitioner") permission to file
an application for interlocutory appeal under Tenn. R. App. P. 9. We
granted the application in order to determine whether the trial court
erred in ruling that the remains of the employee be exhumed and
autopsied. Upon careful review of the record, we find that the
employer, Shelton Security Service, Inc., and its insurance carrier,
Employers Insurance of Wausau ("respondents"), failed to make a timely
request for an autopsy after obtaining reasonable notice of its
necessity. Thus, they are not entitled to exhume and autopsy the
remains of the deceased employee.
URL:http://www.tba.org/tba_files/TSC/cunningr_opn.WP6
WILLIAM A. HALL AND BEEF
TRANSPORT, INC.
vs.
TENNESSEE DRESSED BEEF CO. AND
RICHARD N. HALL
and
WILLIAM A. HALL, DERIVATIVELY
ON BEHALF OF TENNESSEE DRESSED
BEEF CO.
vs.
RICHARD N. HALL
Court:TSC
Attorneys:
For Plaintiffs-
Appellees-Appellant For Defendants-
Appellants Appellees:
Jeffrey A. Greene John S. Hicks
Alvin L. Harris Darwin A. Hindman, III
Greene & Greene Brigid T. Miller
Nashville Baker, Donelson, Bearman
& Caldwell
Nashville
Judge:REID
First Paragraph:
This case presents appeals by all parties from the decision of the
Court of Appeals affirming in part and reversing in part the order of
the trial court granting summary judgment in favor of the defendants
on all issues. The decisions granting summary judgment are reversed
and the case is remanded.
URL:http://www.tba.org/tba_files/TSC/hallwa_opn.WP6
STATE OF TENNESSEE
vs.
DAVID WILLARD PHIPPS, JR.
Court:TSC
Attorneys:
FOR STATE OF TENNESSEE FOR DAVID WILLARD PHIPPS, JR.
John Knox Walkup Lionel R. Barrett, Jr.
Attorney General & Reporter Nashville, Tennessee
Michael E. Moore Jacob M. Dickinson, IV
Solicitor General Memphis, Tennessee
Kathy Morante,
Deputy Attorney General
Criminal Justice Division
Lisa A. Naylor,
Assistant Attorney General
Nashville, Tennessee
Robert "Gus" Radford
District Attorney General
Huntingdon, Tennessee
Judge:DROWOTA
First Paragraph:
In this appeal, we must determine whether the State's decision to
pursue the death penalty, following the defendant's successful appeal
of his conviction for which the death penalty originally was not
sought, gives rise to a rebuttable presumption of prosecutorial
vindictiveness. After carefully considering the relevant legal
principles, we conclude that the rebuttable presumption of
vindictiveness applies in this case. Because the State had no
opportunity, during the hearing on the motion to strike, to introduce
proof to overcome the presumption, we reverse the decision of the
Court of Criminal Appeals upholding the trial court's order striking
the State's notice of intent to seek the death penalty and remand this
cause to the trial court for a hearing in which the State shall bear
the burden of demonstrating by clear and convincing evidence that the
presumption of vindictiveness has been overcome. If, after hearing
the proof presented, the trial court is satisfied that the presumption
has been overcome, the State may seek the death penalty in this case.
URL:http://www.tba.org/tba_files/TSC/phippsdw_opn.WP6
URL:http://www.tba.org/tba_files/TSC/phippsdw_con.WP6
STATE OF TENNESSEE
vs.
DAVID E. WALTON, JR.
Court:TSC
Attorneys:
For Appellant: For Appellee:
W. MARK WARD JOHN KNOX WALKUP
Memphis, TN Attorney General and Reporter
MICHAEL E. MOORE
Solicitor General
Nashville, TN
CLAYBURN L. PEEPLES
District Attorney General
Trenton, TN
Judge:BIRCH
First Paragraph:
We granted the application for review filed by David E. Walton, Jr.,
the defendant, in order to address issues pertinent to the sentences
imposed. In our review, however, we notice as plain error the failure
of the State to properly elect offenses, which resulted in violation
of the defendant's right to jury unanimity. Accordingly, for the
reasons outlined below, we reverse the convictions and vacate the
sentences imposed. The cause is remanded to the trial court for
further proceedings consistent with this opinion.
URL:http://www.tba.org/tba_files/TSC/waltond_opn.WP6
DAVID ELZEY
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For Appellant: For Appellee:
David Elzey, Pro Se John Knox Walkup
NECC # 10095 Attorney General and Reporter
P.O. Box 5000
Mountain City, TN 37683 Peter M. Coughlan
Assistant Attorney General
425 Fifth Avenue North
Second Floor, Cordell Hull Bldg
Nashville, TN 37243-0493
David E. Crockett
District Attorney General
Route 19, Box 99
Johnson City, TN 37601
Judge:WADE
First Paragraph:
The petitioner, David Elzey, filed a petition for habeas corpus relief
which was denied by the trial court. In this appeal of right, the
petitioner complains that an extension of his release eligibility date
by twenty percent pursuant to the policy 502.02 of the Department of
Correction constituted cruel and unusual punishment contrary to the
state and federal constitutions, a violation of the ex post facto
clause of the state and federal constitutions, and an unauthorized
exercise of administrative authority.
URL:http://www.tba.org/tba_files/TCCA/elzeyd_opn.WP6
RANDY HENSLEY
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For Appellant: For Appellee:
Randy Hensley, Pro Se John Knox Walkup
# 099477 NECC Attorney General and Reporter
P.O. Box 5000
Mountain City, TN 37683 Michael J. Fahey, II
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
David E. Crockett
District Attorney General
Route 19, Box 99
Johnson City, TN 37601
Judge:WADE
First Paragraph:
The petitioner, Randy Hensley, appeals the trial court's denial of his
petition for habeas corpus relief. The single issue presented for
review is whether his indictments for robbery and assault with intent
to commit murder, both of which led to convictions, were void for the
failure to include all of the essential elements of the crime. In
particular, the petitioner argues that his indictments failed to
assert the requisite mens rea. It is the contention of the petitioner
that, due to the faulty indictments, the trial court lacked
jurisdiction to enter a conviction or impose a sentence.
URL:http://www.tba.org/tba_files/TCCA/hensleyr_opn.WP6
OLEN EDWARD HUTCHISON
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
FOR THE APPELLANT: FOR THE APPELLEE:
CHRISTOPHER VAN RIPER JOHN KNOX WALKUP
STUART & VAN RIPER Attorney General & Reporter
300 Market Street
Clinton, TN 37716 JOHN P. CAULEY
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243-0943
WILLIAM PAUL PHILLIPS
District Attorney General
MICHAEL O. RIPLEY
Assistant District Attorney General
P.O. Box 323
Jacksboro, TN 37757
Judge:WOODALL
First Paragraph:
The Petitioner, Olen Edward Hutchison, appeals as of right from the
trial court's dismissal of his second petition for post-conviction
relief. The dismissal followed argument by both parties on the
State's motion to dismiss. The trial court allowed both parties to
argue the merits of the State's motion to dismiss, but no evidence was
submitted by either side at the hearing. We affirm the judgment of
the trial court.
URL:http://www.tba.org/tba_files/TCCA/htchsnoe_opn.WP6
BRUCE C. SLATER
vs.
STATE OF TENNESSEE
Court:TCCA
Attorneys:
For Appellee: For Appellant:
Allen E. Schwartz John Knox Walkup
603 Main Street Attorney General and Reporter
Suite 405
Knoxville, TN 37902 Marvin E. Clements, Jr.
Assistant Attorney General
Aubrey Davis 450 James Robertson Parkway
Assistant Public Defender Nashville, TN 37243-0493
1209 Euclid Avenue
Knoxville, TN 37921 Marsha Selecman
Asst District Attorney General
City-County Building, Suite 168
400 Main Street
Knoxville, TN 37902-2405
Judge:WADE
First Paragraph:
The state appeals from a judgment by the trial court reducing the
sentence of petitioner, Bruce Slater. In 1987, the petitioner
committed bank robbery. He was sentenced in 1991. The petitioner
sought relief from the length of his sentence through the
Post-Conviction Procedure Act. The primary issue presented for our
review is whether the petitioner should have been sentenced under the
1982 Sentencing Act or the 1989 Sentencing Act. A secondary issue
relates to procedure and jurisdiction. We reverse the judgment of the
trial court and remand the cause for a recalculation of the sentence.
URL:http://www.tba.org/tba_files/TCCA/slaterbc_opn.WP6

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